Terry Flew. Regulating Convergent Media: An Ongoing Policy Challenge.

May 27, 2015

Fairness, Opportunity and Security.
Policy series edited by Michael Keating and John Menadue.

In the 2013 Federal election, neither of Australia’s major political parties took forward a detailed media policy. This was surprising as one of the main features of the Gillard and Rudd Labor governments was significant attention being given to reviews of media and communication law and policy, particularly between 2011-2013. The Convergence Review was established in 2011 to ‘review the current policy framework for the production and delivery of media content and communication services’ (Convergence Review Committee, 2012, p. 110), and presented a comprehensive roadmap for media policy reform in April 2012. It was accompanied by a series of other media-related policy inquiries during 2011-2013, including the Finkelstein Review of news media regulation (Finkelstein, 2012), and the Australian Law Reform Commission (ALRC) reviews into the National Classification Scheme (ALRC, 2012) and Copyright and the Digital Economy (ALRC, 2013). These media-related reviews occurred in the context of Labor’s commitments to develop a National Broadband Network (NBN) as an enabling technological infrastructure for wider forms of innovation in the digital economy, in the cultural and creative industries, and in delivery of government services.

There is considerable merit in Labor revisiting these media inquiries as it seeks to develop a comprehensive media policy framework for a future Federal government. In particular, the issues identified by the Convergence Review around the need to develop a regulatory framework sufficiently robust for the next 20 years continue to warrant a response. The Convergence Review argued that ‘many elements of the current regulatory regime are outdated and … other rules are becoming ineffective with the rapid changes in the communication landscape’ (Convergence Review Committee, 2012, p. 1). In particular, it was argued that ‘Australia’s policy and regulatory framework for content services is still focused on the traditional structures of the 1990s—broadcasting and telecommunications. The distinction between these categories is increasingly blurred and these regulatory frameworks have outlived their original purpose’ (Convergence Review Committee, 2012, p. vii).

Similar observations have been made elsewhere about how existing laws, policies and regulations lag behind the technological, economic and socio-cultural changes associated with the Internet and media convergence. The European Commission has observed that ‘lines are blurring quickly between the familiar twentieth-century consumption patterns of linear broadcasting received by TV sets versus on-demand services delivered to computers’, and that ‘if, in a converging world, linear and non-linear provision of similar content were to be treated as being in competition, then the current differences in [regulatory] regimes could clearly distort that relationship’ (EC, 2013, pp. 1, 11). The Media Convergence Review conducted in Singapore in 2012 found that ‘policy and regulatory frameworks which were designed for traditional media platforms and industry structures are no longer able to cope with the characteristics of the converged media environment’ (MDA, 2012, p. 5).

Media convergence has been central to driving the need for regulatory and policy change. Convergence refers to the combination of computing, communications and content around networked digital media platforms. It also refers to the rise of new, digitally based companies such as Google, Apple, Microsoft, Netflix and Amazon, the rapid growth of social media platforms such as Facebook, Twitter and YouTube, the proliferation of user-created content, and multi-screen accessing of media content (e.g. accessing TV programs from tablet computers). Media convergence occurs in parallel with a series of other changes in the global media and communications environment that include:

  1. Increased access to, and use of, high-speed broadband Internet;
  2. The globalisation of media platforms, content and services, meaning that digital media content can be sourced, distributed and accessed to/from any point in the world;
  3. An acceleration of platform and service innovation that makes it increasingly difficult to define the ‘industry’ that major digital companies are operating in (e.g. is Google a media company?);
  4. The proliferation of user-created content, and the associated shift of media users from audiences to participants, resulting in the blurring of a once relatively clear distinction between media producers and consumers;
  5. The blurring of public-private and age-based distinctions, as all media content is increasingly distributed and consumed online, in environments that are public in terms of their access platforms yet private in terms of their consumption.

How such developments impact upon existing forms of media law and policy are many and varied. The Australian Communication and Media Authority (ACMA) identified a series of what it termed broken concepts, where ‘regulation constructed on the premise that content could (and should) be controlled by how it is delivered is losing its force, both in logic and in practice’ (ACMA, 2011a, p. 6). An example would be the ’75 per cent audience reach rule’ for commercial broadcasters, that seeks to limit the leading players to the capital city markets, and enabling regional ownership of TV stations. Such a rule presumes that we only access television content from television stations, whereas we now access it online, whether from the networks themselves (e.g. ABC iView), from YouTube and like services, or from the IPTV providers such as Netflix, Stan, Presto etc. This is not to say that catering to specific regional markets is no longer important – it is – but rather that the instrument chosen of restrictions based on geographical reach is no longer fit for purpose.

In an environment of dramatic change in the media landscape, what are the enduring concepts that continue to shape regulation? For libertarians such as the Institute for Public Affairs (IPA), there are none: technological change and limitless consumer choice render the need to regulate media content or protect audiences redundant. To that end, the IPA have recommended abolishing the ACMA and the Classification Board, as well as privatising SBS and breaking up the ABC (Roskam et. al., 2012). But no other country in the world is approaching media convergence in that way, and the digital media players themselves expect some form of media regulation to continue in the future. To take one example, Google recognises the importance of Australian content rules for the maintenance and strengthening of a diverse national cultural identity, even if it wishes to debate the best means of achieving such goals (Flynn, 2012).

The ACMA (2015) has identified a set of 16 enduring concepts that continue to provide public interest principles around which regulation of media industries, markets, content and services can be evaluated. They are a mix of traditional media policy goals and principles that have become increasingly important in the digital environment, and include principles pertaining to market standards, social and economic participation, cultural values, and community safeguards. These principles cover: questions of market access and standards, including consumer rights for complaint and redress; social and economic participation, including the equitable provision of digital services, digital literacy, and the need to safeguard content diversity in a pluralist democracy; cultural values, including support for Australian content, community standards provisions, localised services, and media ethics; and safeguards, such as access to emergency services, protection of children from potentially harmful content, and privacy provisions for the management of digital data.

Such core concepts provide the basis for identifying principles-based regulations that can be durable and enhance Australian media and its contribution to citizenship, culture and public life at a time of rapid changes associated with digital convergence. In relation to cultural values, for instance, it is apparent that many of the provisions that have existed to support Australian identity, community values, localism and ethical standards have only applied to the dominant platforms such as broadcasting and, to a lesser extent, print media. Developing policies that would, for instance, support Australian content on IPTV services or the multichannel services of commercial broadcasters, promote local community identity through online media, or ethical standards among bloggers and online-only services, requires new approaches to regulation that are developed in consultation with the community and with the providers themselves. It also requires consideration of what constitutes a “media company” of sufficient audience reach to warrant regulation of its conduct and policies to promote socially desirable forms of media content, and how this is undertaken without inhibiting freedom of personal communication.

In balancing the relationship between competitive markets and community safeguards, the ideal policy setting would be that of platform neutrality, where rules are based on media content rather than upon platforms or delivery technologies. A good example of the risks associated with treating content differently based upon its platform was the long prohibition on R18+ computer games, that was finally overturned in 2013, and which had left Australian games regulations at odds with the rest of the world, as well as creating regulatory anomalies that generated uncertainty in a fast growing industry. This would be applied in a manner that was gradual and not necessarily rigid: the community has greater expectations of the accuracy of content appearing on the ABC web site, for instance, than it does of personal blogs. But principles such as protection from harm and community standards remain important regardless of the delivery platform, or indeed whether the provider is locally based or part of a global platform, and it is appropriate for government to work with the major digital media platform providers to ensure that they meet minimum safeguards.

The positive role of such principles in promoting quality, diversity, Australian content and localism also points to a central role in the 21st century for public service media. The ABC and SBS have become multiplatform content services, and have been important innovators in the convergent media environment. They will continue to face the challenge of how to provide the content that is central to their Charter obligations (accurate and comprehensive news services, educational content, multicultural content etc.), while also opening up their platforms in order to enable greater community access, diversity of voices and public participation. In order to do this, and to promote digital citizenship in the 21st century, governments will need to ensure that they are adequately resourced and not artificially inhibited from being innovators in the convergent media environment.

In advancing an agenda for media policy reform, the challenge is that the same media outlets that are affected by legislative change are those who also provide public information about it. The extreme disjuncture this can produce was seen in the previous Labor government, when Senator Conroy’s proposals to amend communications legislation in order to establish a Public Interest Media Advocate to strengthen the requirements on news media outlets to conduct themselves in an ethical manner saw him compared to Joseph Stalin and Kim Jong-Un on the front page of the Sydney Daily Telegraph (Hobbs and McKnight, 2014). Added to this is the propensity for media incumbents to seek policy outcomes that best suit their own interest: News Limited favours a self-regulatory Australian Press Council that it funds itself, rather than a government-supported entity; the commercial TV networks wish to see the three-station rule preserved into the indefinite future; and so on. There is also the long history of Australian media proprietors being close to the conservative political parties, perhaps best seen in recent times with Rupert Murdoch and then Opposition leader Tony Abbott sharing the podium at the 70th anniversary dinner of the Institute for Public Affairs in April 2013. The lessons for Labor of the period in office from 2007 to 2013 may lead some to view media policy as something that goes in the “too hard” basket: you end up making political enemies for little tangible electoral return.

But important reforms to media legislation have been passed by Labor governments before, and could be again. The Hawke and Keating governments oversaw the creation of a new Broadcasting Services Act in 1993, as well as the Telecommunications Act 1989 and the Classification Act 1995. There is little doubt that the urgent need for change is felt in the relevant industries, in light of the forces associated with next-generation media convergence discussed above. It is also apparent that public expectations about getting better quality media and about ethics and standards in the media remain high, and the Internet and social media have made it much easier for all sections of the community to make their voices heard when they are dissatisfied with the Australian media’s performance. By taking a principles-based approach to amending media legislation, and being committed to open and public consultation rather than a “closed door” approach to consultation, a future Labor government could make lasting and important changes that would have important benefits for a democratic and diverse Australian culture, as well as enabling Australian media to be at the forefront of digital innovation, rather than simply seeking protection from global media platforms.

References Cited

  • Australian Communications and Media Authority (2011) Broken Concepts: The Australian Communications Legislative Landscape, Melbourne: ACMA.
  • Australian Communications and Media Authority (2015) Evidence Informed Regulatory Practice—An Adaptive Response, 2005-15, Melbourne: ACMA.
  • Australian Law Reform Commission (2012) Classification – Content Regulation and Convergent Media, ALRC Report 118, Sydney: ALRC.
  • Australian Law Reform Commission (2013) Copyright and the Digital Economy: Final Report, ALRC Report 122, Sydney: ALRC.
  • Convergence Review Committee (2012) Convergence Review: Final Report, Canberra: Department of Broadband, Communications and the Digital Economy.
  • European Commission (2013) Preparing for a Fully Converged Audiovisual World: Growth, Creation and Values: Green Paper, COM(2013) 231 final, 24 April, Brussels.
  • Finkelstein, R. (2012) Report of the Independent Inquiry into the Media and Media Regulation, assisted by M. Ricketson, Canberra: Department of Broadband, Communications and the Digital Economy.
  • Flynn, I. (2012) The Convergence Review and Media Policy – The Missed Opportunities. Telecommunications Journal of Australia 62(3): 47.1-47.9.
  • Hobbs, M. & McKnight, D. (2014) “Kick This Mob Out”: The Murdoch Media and the Australian Labor Government (2007 to 2013). Global Media Journal – Australian Edition 8(2), http://www.hca.uws.edu.au/gmjau/wp-content/uploads/2014/11/GMJAU_Kick_this_mob_out.pdf, date accessed 3 May 2015.
  • Media Development Authority (2012) Media Convergence Review – Final Report. Singapore: MDA.
  • Roskam, J., Paterson, J. & Berg, C. (2012) Be Like Gough: 75 Radical Ideas to Transform Australia. IPA Review 64(2): 6-11.

Terry Flew is Professor of Media and Communications at the Queensland University of Technology. He is the author of six books, including The Creative Industries, Culture and Policy (Sage, 2012), Global Creative Industries (Polity, 2013), New Media: An Introduction (Oxford, 2014) and Media Economics (Palgrave, 2015, co-authored with Stuart Cunningham and Adam Swift). He is a member of the Australian Research Council College of Experts, and an International Communications Association (ICA) Executive Board member. In 2011-12 he was seconded to the Australian Law Reform Commission, chairing the National Classification Scheme Review.



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